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Deprivation of liberty

Deprivation of liberty Page 53 an individual’s compliance with legal obligations, and in particular, in respect of observance of the criminal law. However, detention may also promote the interests of individuals who are vulnerable or at risk, as with detention for the educational supervision of minors or of vagrants, persons of unsound mind, alcoholics and drug addicts. In order to secure the fulfilment of a prescribed legal obligation (Article 5(1)(b)) This provision is likely to be of relevance in cases where police officers are required to deprive individuals of their liberty for short periods of time in order to carry out, for example, a personal search or to check their identities. 146 But this ground cannot be given too loose an interpretation as this could undermine the aim of the Convention in protecting against arbitrary loss of liberty, and thus any such obligation must be of a ‘specific and concrete nature’. 147 ■ In Novotka v Slovakia, the detention of the applicant for one hour following his refusal to show police officers his citizen’s card (which would have allowed his identity to be checked) was not considered to have given rise to any issue which could raise a violation of Article 5, even though he alleged that his identity had been confirmed by two neighbours. 148 ■ In McVeigh, O’Neill and Evans v the United Kingdom, it was accepted that the duty imposed by British anti-terrorist legislation to ‘submit to further examination’ was a specific and concrete obligation to provide information for the purpose of permitting officials to establish status at the point of entry into the United Kingdom and not (as claimed by the applicants) in substance merely an obligation to submit to detention. 149 However, the imposition of a deprivation of liberty must also be a proportionate response to the situation. For example, while detention to ascertain an individual’s identity may fall within the scope of this heading where domestic law imposes an obligation to carry an identification card and to produce this 146 But note Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights (2nd ed., 2009), at p 142: ‘[This limb] provides a means of justifying various powers of temporary detention exercisable by the police (e.g. random breath tests, road blocks, powers of stopping and searching), to enforce obligations of the criminal law to which Article 5(1)(c) would not extend’. 147 Lawless v Ireland (No 3), judgment of 1 July 1961 at paragraph 9. 148 Novotka v Slovakia, Court decision of 4 November 2003. 149 McVeigh and Others v the United Kingdom, Commission decision of 18 March 1981 at paragraphs 168-175.

The European Convention on Human Rights and Policing Page 54 when requested, the prolonged detention of an individual is likely to constitute arbitrary deprivation of liberty. ■ In Vasileva v Denmark, the detention in a police station of an elderly bus passenger for over 13 hours after she had refused to disclose her identity to a ticket inspector during the course of a dispute as to the validity of a ticket was seen as a disproportionate response to the situation. 150 Arrest or detention of a person suspected of breaching the criminal law: Article 5(1)(c) This ground for deprivation is of obvious importance to police officers. The text provides that a police officer may deprive an individual of his liberty ‘for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence’. This provision is thus of relevance in the initial stage of a criminal process, and must be read alongside the entitlement in Article 5(3) to ‘be brought promptly before a judge or other officer authorised by law to exercise judicial power and … to trial within a reasonable time or to release pending trial’. The key issues of interpretation are as follows: ffthe detention may be based upon judicial authorisation, but a police officer is also likely to have powers to arrest and detain an individual without judicial warrant. The offence may be an offence under the criminal law or the administrative code. ffthe ‘offence’ must have constituted a crime at the time when the offence was alleged to have occurred. ffthe purpose of detention in such cases is to help confirm or dispel the suspicion that an individual has committed a crime or offence, and thus the detention must be for this sole purpose and not for any extraneous aim (such as to exert moral pressure upon a detainee). 151 ffa police officer must always be able to show there has been ‘reasonable suspicion’. This presupposes the existence of facts or information which would satisfy an objective observer that the arrested person may have committed an offence. 152 150 Vasileva v Denmark, judgment of 25 September 2003 at paragraphs 32-43. 151 Giorgi Nikolaishvili v Georgia, judgment of 13 January 2009 at paragraphs 60-67. 152 Fox, Campbell and Hartley v the United Kingdom, judgment of 30 August 1990 at paragraphs 32-36.